Leigh v. State, 47036
| Decision Date | 09 May 1984 |
| Docket Number | No. 47036,47036 |
| Citation | 673 S.W.2d 788 |
| Parties | Lonnie LEIGH, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Terry E. Brummer, State Public Defender, Jefferson City, for movant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the denial of his Rule 27.26 motion following an evidentiary hearing. We affirm.
This is the third time this case has reached the appellate court. Movant's original appeal after his conviction for statutory rape and his sentence to thirty years imprisonment is State v. Leigh, 580 S.W.2d 536 (Mo.App.1979). Following our affirmance of his conviction, movant filed a 27.26 motion which was denied, without an evidentiary hearing. We reversed and remanded for the purpose of holding an evidentiary hearing in Leigh v. State, 639 S.W.2d 406 (Mo.App.1982).
A full evidentiary hearing was held, after which the court denied movant relief. He appeals, alleging two points of error. First, whether the court's findings of fact and conclusions of law sufficiently address his contentions concerning jury waiver and whether he received ineffective assistance of counsel in waiving his right to a jury trial. Second, whether his trial counsel was ineffective in failing to investigate an alibi defense by making an adequate effort to contact potential defense witnesses who could have testified movant was not at the scene of the crime when it occurred.
The facts are fully set forth in the original appeal. State v. Leigh, 580 S.W.2d 536 (Mo.App.1979). For the purposes of the current appeal, it is sufficient to state that movant was incarcerated at the City workhouse. He was the owner of a St. Louis service station and under some program was, on occasion, permitted to go to his station under escort to conduct business. The evidence is unclear as to the extent of the escort's involvement but, in any event, it is alleged that while on one of these sojourns, movant statutorily raped a 10 year old girl who was present at his station. A major issue in the case was the time that the rape occurred. Testimony from the girl and members of her family placed the time between 10:15 and 10:30 a.m. Defendant contended that at that time, he had not yet left the workhouse, and therefore he could not have been at the scene. The state buttressed their position that movant could have been present by the testimony of a police officer who investigated movant's failure to return from his escorted release on the day of the incident. The officer relied on his police report, which included statements by Assistant Warden Williams and the escort, Nathaniel Brown, indicating that movant left the workhouse at around 9:00 a.m. The record is not exactly clear as to the nature of Brown's position, but it appears that he himself was a prior prisoner, and was employed in some kind of program wherein people previously in trouble were assisting law enforcement officials.
Prior to commencement of trial on July 1, 1976, movant signed a waiver of jury trial, which was filed with the trial court on June 30, 1976. Defendant's trial as a court-tried case proceeded over a period of time interspersed with other judicial matters. Ultimately, on August 6, 1976, defendant was found guilty and the court issued findings of fact and conclusions of law. Movant does not challenge these findings of the trial court but rather, the findings issued after his Rule 27.26 evidentiary hearing concerning the waiver of jury trial.
Concerning the sufficiency of the Rule 27.26 findings, we still adhere to the rule set forth in McCoy v. State, 610 S.W.2d 708, 709 (Mo.App. banc 1981). The purpose of findings of fact and conclusions of law is to provide for a meaningful appellate review of the trial court. We find the trial court's findings after the evidentiary hearing sufficient for that purpose. Therefore, movant's complaint as to the findings of fact and conclusions of law is without merit.
We now examine his complaint of ineffective assistance of counsel in investigating an alibi defense and waiving a jury trial. Initially, we note that the credibility of witnesses is a matter for the trial court's determination; it is not required to believe the movant even if there is no evidence to rebut his claims. Cherry v. State, 625 S.W.2d 681, 682 (Mo.App.1981). Our review, furthermore, is limited to a determination of whether or not the findings, conclusions and...
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...all points as to permit meaningful appellate review of the motion court's judgment, they are sufficiently specific. Leigh v. State, 673 S.W.2d 788, 790 (Mo.App.1984). Further, to be entitled to an evidentiary hearing on a Rule 27.26 motion, the movant must: (1) allege facts, not conclusions......
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